EXHIBIT 5(b)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement"),
made as of the 18th day of June, 2002, by and between Janus Investment Fund, a
business trust organized and existing under the laws of the Commonwealth of
Massachusetts (hereinafter called "JIF"), and Janus Distributors LLC, a limited
liability company organized and existing under the laws of the State of Delaware
(hereinafter called the "Distributor" or "Janus Distributors"). This Agreement
applies separately to each portfolio of JIF whether now existing or hereafter
created.
WITNESSETH:
WHEREAS, JIF is engaged in business as an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the laws of
each state or jurisdiction in which the Distributor engages in business to the
extent such law requires, and is a member of the National Association of
Securities Dealers, Inc. (the "NASD") (such registrations and membership are
referred to collectively as the "Registrations"); and
WHEREAS, JIF desires the Distributor to act as the underwriter for the
public offering of the shares of beneficial interest (hereinafter called
"Shares") of each of JIF's portfolios whether now existing or hereafter created
(hereinafter each called a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. Appointment. JIF appoints Janus Distributors to act as distributor
of its Shares.
2. Delivery of Fund Documents. JIF has furnished the Distributor with
properly certified or authenticated copies of each of the following in effect on
the date hereof and shall furnish the Distributor from time to time properly
certified or authenticated copies of all amendments or supplements thereto:
(a) Agreement and Declaration of Trust;
(b) By-Laws; and
(c) Resolutions of the Board of Trustees (hereinafter referred to
as the "Trustees") selecting the Distributor as distributor
and approving this form of agreement and authorizing its
execution.
JIF shall furnish the Distributor promptly with copies of any
registration statements filed by it with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, (the "1933 Act") or
the 1940 Act, together with any financial statements and exhibits included
therein, and all amendments or supplements thereto hereafter filed.
JIF shall also furnish the Distributor with such other certificates or
documents as the Distributor may from time to time, in its discretion,
reasonably deem necessary or appropriate in order to properly perform its duties
under this Agreement.
3. Solicitation of Orders for Purchase of Shares.
(a) Subject to the provisions of Paragraphs 4 and 7 hereof, and to such
minimum purchase requirements as may from time to time be indicated in each
Fund's Prospectus or Statement of Additional Information, the Distributor is
authorized to solicit, as agent on behalf of JIF, unconditional orders for
purchases of each Fund's Shares authorized for issuance and registered under the
1933 Act, provided that:
(1) The Distributor shall act solely as a disclosed agent on
behalf of and for the account of JIF;
(2) The Distributor shall confirm or arrange with the transfer
agent for the Shares to confirm all purchases of the Shares.
Such confirmation shall conform to the requirements of Rule
10b-10 under the 1934 Act and shall clearly state that the
Distributor is acting as agent in the transaction.
(3) The Distributor shall have no liability for payment for
purchases of Shares it sells as agent; and
(4) Each order to purchase Shares of a Fund received by the
Distributor shall be subject to acceptance by an officer of
JIF and entry of the order on such Fund's records or
shareholder accounts and is not binding until so accepted and
entered.
The purchase price of a Fund's Shares to the public shall be the public
offering price described in Paragraph 6 hereof.
(b) In consideration of the rights granted to the Distributor under
this Agreement, the Distributor will use its best efforts (but only in states
and jurisdictions in which the Distributor may lawfully do so) to solicit from
investors unconditional orders to purchase Shares of each Fund. JIF shall make
available to the Distributor without cost to the Distributor such number of
copies of each Fund's currently effective Prospectus and Statement of Additional
Information and copies of all information, financial statements and other papers
that the Distributor requires for use in connection with the distribution of
Shares.
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4. Solicitation of Orders to Purchase Shares by Fund. The rights
granted to the Distributor shall be non-exclusive in that JIF reserves the right
to otherwise solicit purchases from, and sell Shares to, investors, including
without limitation the right to issue Shares in connection with the merger or
consolidation of any other investment company, trust or personal holding company
with a Fund, or a Fund's acquisition, by the purchase or otherwise, of all or
substantially all of the assets of an investment company, trust or personal
holding company, or substantially all of the outstanding shares or interests of
any such entity.
5. Payment of Expenses. The Distributor will not be entitled to any
compensation with respect to its services. JIF shall pay all charges of its
transfer, shareholder recordkeeping, dividend disbursing and redemption agents,
if any; all expenses of preparation, printing and mailing of confirmations; all
expenses of preparation and printing of annual or more frequent revisions of
each Fund's Prospectus and Statement of Additional Information and of supplying
copies thereof to shareholders; all expenses of registering and maintaining the
Registrations of JIF under the 1940 Act and the sale of JIF's Shares under the
1933 Act; all expenses of qualifying and maintaining qualifications of each Fund
and of the Shares for sale under securities laws of various states or other
jurisdictions and of registration and qualification of each Fund under all laws
applicable to JIF or its business activities.
6. Public Offering Price. All solicitations by the Distributor pursuant
to this Agreement shall be for orders to purchase Shares of a Fund at the public
offering price. The public offering price for each accepted subscription for a
Fund's Shares will be the net asset value per share next determined by JIF after
it accepts such subscription. The net asset value per share of the Shares shall
be determined in the manner provided in JIF's Declaration of Trust as now in
effect or as it may be amended, and as reflected in the then current Prospectus
and Statement of Additional Information covering the Shares.
7. Suspension of Sales. If and whenever the determination of a Fund's
net asset value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by JIF except such unconditional orders
placed with JIF and accepted by it before the suspension. In addition, JIF
reserves the right to suspend sales of Shares of a Fund if, in the judgment of
the Trustees, it is in the best interest of the Fund to do so, such suspension
to continue for such period as may be determined by the Trustees; and in that
event, (i) at the direction of JIF, the Distributor shall suspend its
solicitation of orders to purchase Shares of such Fund until otherwise
instructed by JIF, and (ii) no orders to purchase Shares of such Fund shall be
accepted by JIF while such suspension remains in effect unless otherwise
directed by its Trustees.
8. Authorized Representations. The Distributor is not authorized by JIF
to give on behalf of any Fund any information or to make any representations in
connection with the sale of Shares other than the information and
representations contained in such Fund's registration statement filed with the
SEC under the 1933 Act and/or the 1940 Act, covering Shares, as such
registration statement or such Fund's Prospectus or Statement of Additional
Information may be amended or supplemented from time to time, or contained in
shareholder reports or other material that may be prepared by or on behalf of
such Fund or approved by such Fund for the Distributor's use.
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9. Registration of Additional Shares. JIF hereby agrees to register an
indefinite number of Shares pursuant to Rule 24f-2 under the 1940 Act;. JIF
will, in cooperation with the Distributor, take such action as may be necessary
from time to time to qualify the Shares of each Fund (so registered or otherwise
qualified for sale under the 1933 Act), in any state or jurisdiction mutually
agreeable to the Distributor and JIF, and to maintain such qualification;
provided, however, that nothing herein shall be deemed to prevent JIF from
registering the Shares without approval of the Distributor in any state it deems
appropriate.
10. Conformity With Law. The Distributor agrees that in soliciting
orders to purchase Shares it shall duly conform in all respects with applicable
federal and state laws and with the rules and regulations of the NASD. The
Distributor will use its best efforts to maintain its Registrations in good
standing during the term of this Agreement and will promptly notify JIF in the
event of the suspension or termination of any of the Registrations.
11. Anti-Money Laundering. The Distributor agrees that it will
establish and implement an anti-money laundering program that duly conforms in
all respects with current applicable federal anti-money laundering laws and
regulations.
12. Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor, nor any of its officers, directors,
employees, or representatives is or shall be an employee of JIF in the
performance of the Distributor's duties hereunder. The Distributor shall be
responsible for its own conduct and the employment, control, and conduct of its
agents and employees and for injury to such agents or employees or to others
through its agents and employees and agrees to pay or to insure that persons
other than JIF will pay all employee taxes due with respect to the activities of
its agents and employees.
13. Indemnification. The Distributor agrees to indemnify and hold
harmless JIF and each of the Trustees and its officers, employees and
representatives and each person, if any, who controls JIF within the meaning of
Section 15 of the 1933 Act against any and all losses, liabilities, damages,
claims and expenses (including the reasonable costs of investigating or
defending any alleged loss, liability, damage, claim or expense and reasonable
legal counsel fees incurred in connection therewith) to which JIF or such
Trustees, officers, employees, representatives, or controlling person or persons
may become subject under the 1933 Act, under any other statute, at common law,
or otherwise, arising out of the acquisition of any Shares of any Fund by any
person which (i) may be based upon any wrongful act by the Distributor or any of
the Distributor's directors, officers, employees or representatives, or (ii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering Shares of such
Fund filed or made public by JIF or any amendment thereof or supplement thereto
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon information furnished to
such Fund by the Distributor in writing. In no case (i) is the Distributor's
indemnity in favor of JIF, or any person indemnified, to be deemed to protect
JIF or such indemnified person against any liability to which JIF or such person
would otherwise be subject by reason of willful misfeasance,
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bad faith, or gross negligence in the performance of its or such person's duties
or by reason of its or such person's reckless disregard of its or such person's
obligations and duties under this Agreement, or (ii) is the Distributor to be
liable under its indemnity agreement contained in this paragraph with respect to
any claim made against JIF or any person indemnified unless JIF or such person,
as the case may be, shall have notified the Distributor in writing of the claim
within a reasonable time after the summons, or other first written notification,
giving information of the nature of the claim served upon JIF or upon such
person (or after JIF or such person shall have received notice of such service
on any designated agent). However, failure to notify the Distributor of any such
claim shall not relieve the Distributor from any liability that the Distributor
may have to JIF or any person against whom such action is brought otherwise than
on account of the Distributor's indemnity agreement contained in this Paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense, or, if Distributor so elects, to assume the defense of any suit
brought to enforce any such claim but, if the Distributor elects to assume the
defense, such defense shall be conducted by legal counsel chosen by the
Distributor and satisfactory to the persons indemnified who are defendants in
the suit. In the event that the Distributor elects to assume the defense of any
such suit and retain such legal counsel, persons indemnified who are defendants
in the suit shall bear the fees and expenses of any additional legal counsel
retained by them. If the Distributor does not elect to assume the defense of any
such suit, the Distributor will reimburse persons indemnified who are defendants
in such suit for the reasonable fees of any legal counsel retained by them in
such litigation.
JIF agrees to indemnify and hold harmless the Distributor and each of
its directors, officers, employees, and representatives and each person, if any,
who controls the Distributor within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, damages, claims or expenses (including
the reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expenses and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or such of its directors,
officers, employees, representatives or controlling person or persons may become
subject under the 1933 Act, under any other statute, at common law, or otherwise
arising out of the acquisition of any Shares by any person which (i) may be
based upon any wrongful act by JIF or any of the Trustees, or JIF's officers,
employees or representatives other than the Distributor, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, Prospectus, Statement of Additional
Information, shareholder report or other information covering Shares filed or
made public by JIF or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading unless
such statement or omission was made in reliance upon information furnished by
the Distributor to JIF. In no case (i) is JIF's indemnity in favor of the
Distributor or any person indemnified to be deemed to protect the Distributor or
such indemnified person against any liability to which the Distributor or such
indemnified person would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of its or such person's duties
or by reason of its or such person's reckless disregard of its or such person's
obligations and duties under this Agreement, or (ii) is JIF to be liable under
its indemnity agreement contained in this Paragraph with respect to any claim
made against the Distributor or any person indemnified unless the
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Distributor, or such person, as the case may be, shall have notified JIF in
writing of the claim within a reasonable time after the summons, or other first
written notification, giving information of the nature of the claim served upon
the Distributor or upon such person (or after the Distributor or such person
shall have received notice of such service on any designated agent). However,
failure to notify JIF of any such claim shall not relieve JIF from any liability
which JIF may have to the Distributor or any person against whom such action is
brought otherwise than on account of JIF's indemnity agreement contained in this
Paragraph.
JIF shall be entitled to participate, at its own expense, in the
defense or, if JIF so elects, to assume the defense of any suit brought to
enforce such claim but, if JIF elects to assume the defense, such defense shall
be conducted by legal counsel chosen by JIF and satisfactory to the persons
indemnified who are defendants in the suit. In the event that JIF elects to
assume the defense of any such suit and retain such legal counsel, the persons
indemnified who are defendants in the suit shall bear the fees and expenses of
any additional legal counsel retained by them. If JIF does not elect to assume
the defense of any such suit, JIF will reimburse the persons indemnified who are
defendants in such suit for the reasonable fees and expenses of any legal
counsel retained by them in such litigation.
14. Duration and Termination of this Agreement. With respect to each
Fund and the Distributor, this Agreement shall become effective as of the date
first written above and unless terminated as provided herein, shall remain in
effect through July 1, 2003, and from year to year thereafter, but only so long
as such continuance is specifically approved at least annually (a) by a vote of
a majority of the Trustees who are not parties to this agreement or interested
persons of any such party, voting in person at a meeting called for the purpose
of voting on such approval, and (b) by the vote of either a majority of the
Trustees or a majority of the outstanding voting securities of the Fund. If the
continuance of this Agreement is not approved as to a Fund, the Distributor may
continue to render to that Fund the services described herein in the manner and
to the extent permitted by the 1940 Act and the rules and regulations
thereunder, and this Agreement shall continue with respect to those Funds that
have approved its continuance. This Agreement may be terminated by and between
an individual Fund and the Distributor at any time, without the payment of any
penalty (a) on 60 days' written notice, by a vote of a majority of the Trustees
or by a vote of a majority of the outstanding voting securities of such Fund, or
(b) by the Distributor. Without prejudice to any other remedies of JIF, JIF may
terminate this Agreement at any time immediately on written notice in the event
of the Distributor's failure to fulfill any of its obligations hereunder,
including the termination or suspension of any of the Registrations. This
Agreement will automatically terminate in the event of its assignment.
In interpreting the provisions of this Paragraph 13, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"interested person", "assignment", and "majority of the outstanding voting
securities ") shall be applied.
15. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by each party against which enforcement of the change, waiver,
discharge, or termination is sought. If JIF should
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at any time deem it necessary or advisable in the best interests of a Fund that
any amendment of this Agreement be made in order to comply with the
recommendations or requirements of the SEC or any other governmental authority
or to obtain any advantage under state or Federal or tax laws and notifies the
Distributor of the form of such amendment, and the reasons therefore, and if the
Distributor should decline to assent to such amendment, JIF may terminate this
Agreement as to that Fund forthwith. If the Distributor should at any time
request that a change be made in JIF's Agreement and Declaration of Trust or
By-Laws or in its methods of doing business, or in the registration statement,
the Prospectus or the Statement of Additional Information of any Fund, in order
to comply with any requirements of Federal or state law or regulations of the
SEC, or of a national securities association of which the Distributor is or may
be a member, relating to the sale of Shares, and JIF should not make such
necessary changes within a reasonable time, the Distributor may terminate this
Agreement as to that Fund forthwith.
16. Limitation of Personal Liability. The parties to this Agreement
acknowledge and agree that all liabilities of JIF arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of JIF and that no Trustee, officer, employee
or agent, or holder of shares of beneficial interest of JIF, whether past,
present or future, shall be personally liable for any of such liabilities. JIF's
Agreement and Declaration of Trust, as amended from time to time, is on file in
the Office of the Secretary of State of The Commonwealth of Massachusetts, and
describes in detail the respective responsibilities and limitations on liability
of the Trustees, officers and holders of shares of beneficial interest of JIF.
17. Notification by JIF. JIF agrees to advise the Distributor
immediately:
(a) of any request by the SEC for amendments to JIF's
Registration Statement insofar as it relates to any of the Funds, the Prospectus
or the Statement of Additional Information or for additional information,
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of JIF's Registration Statement insofar as it
relates to any of the Funds, the Prospectus or the Statement of Additional
Information or the initiation of any proceeding for that purpose,
(c) of the occurrence of any material event which makes untrue
any statement made in JIF's Registration Statement insofar as it relates to any
of the Funds, the Prospectus or the Statement of Additional Information or which
requires the making of a change in order to make the statements therein not
misleading and
(d) of all actions of the SEC with respect to any amendments
to JIF's Registration Statement insofar as they are related to the shares of any
of the Funds, the Prospectus or the Statement of Additional Information which
may from time to time be filed with the SEC under the 1933 Act.
18. Miscellaneous. The captions in this Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their
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construction or effect. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Notice. Any notice required or permitted to be given by a party to
this Agreement or to any other party hereunder shall be deemed sufficient if
delivered in person or sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to each such other party at the address
provided below or to the last address furnished by each such other party to the
party giving notice.
If to JIF: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Secretary
If to the Distributor: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Secretary
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
ATTEST: JANUS DISTRIBUTORS LLC
/s/ Xxxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Early
-------------------------- -----------------------------------
Xxxxxx X. Early, Vice President
ATTEST: JANUS INVESTMENT FUND
/s/ Xxxxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxx Xxxxx
-------------------------- -----------------------------------
Xxxxxx Xxxxxx Xxxxx, Vice President
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